ALI-ABA Course of Study Criminal Enforcement of Environmental Laws. May 18-19, 2006 Washington, D.C. PROGRAM FACULTY PARTICIPANTS

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1 ALI-ABA Course of Study Criminal Enforcement of Environmental Laws May 18-19, 2006 Washington, D.C. PROGRAM FACULTY PARTICIPANTS TABLE OF CONTENTS Page xi xiii STUDY MATERIAL 1. Environmental Crimes 2005: A Review of Initiatives and Major Prosecutions by the United States Department of Justice's Environmental Crimes Section By David M. Uhlmann 2. Worker Safety Cases Priority for Environmental Crimes Chief By John Stossell; Submitted by Danield W. Dooher and Kevin A. Gaynor 3. The State of Environmental Crime Enforcement: An Annual Survey By Steven P. Solow 4. Individual Criminal Liabililty for Willful Violation of the Occupational Safety and Health Act: A Practice Guide for Navigating Investigation and Prosecution of OSHA Crimes By W. Warren Hamel and Alice W.W. Parham 5. When Worker Safety Meets Environmental Crimes: DOJ's New Enforcement Initiative By Judson W. Starr and Amy J. McMaster 6. Factors in Decisions on Criminal Prosecutions for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator By Department of Justice; Submitted by Judson W. Starr 7. Exercise of Criminal Prosecutorial Discretion for Environmental Violations in the Context of Significant Voluntary Compliance or Disclosure Efforts by the Violator By Richard B. Stewart; Submitted by Judson W. Starr 8. Implementation of the Environmental Protection Agency's Self-Policing Policy for Disclosures Involving Potential Criminal Violations By Earl E. Devaney; Submitted by Judson W. Starr 9. "Waiving" Goodbye to the Internal Investigation By Judson W. Starr, David D. Dickman, Michael S. Munson 10. Directive 99-20: Global Settlement Policy By Lois J. Schiffer; Submitted by Judson W. Starr vii

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3 11. Directive 99-21: Integrated Enforcement Policy By Lois J. Schiffer; Submitted by Judson W. Starr 12. Waiver of the Corporate Attorney-Client and Work Product Protection By Robert D. McCallum, Jr.; Submitted by Judson W. Starr Materials regarding Trial Issues and Strategies 109 Submitted by Alan S Gold Agenda for Pretrial Conference, in United States v. Stickle et al.,, No CR-GOLD, S.D. Florida 111 Omnibus Order on Pending Motions, in United States v. Stickle, et al., No CR, S.D. Florida 113 Order on Defendant's Renewed Motion for Judgment of Acquittal or, in the alternative, for New Trial, in United States v. Stickle et al., No CR-GOLD, S.D. Florida 131 United States v. Baker et al., No (11th Cir., Dec. 13, 2005 opinion) 176 United States v. Battle, , (S.D. Florida, December 22, 2005 opinion) Brady v. Maryland Motions in Environmental Crime Cases 235 By Robert W. Tarun Study Outline 237 Brady v. Maryland Motions 243 A Guide to Effective Brady Motions Memorandum of January 28, 2005, from Deputy Attorney General James B. Comey to Federal Prosecutors re Department Polices and Procedures Concerning Sentencing By James A. Morgulec 16. Sentencing Guidance in Environmental Prosecutions, Including the Use of Supplemental Sentencing Measures (December 2000) By ; Submitted by Judson W. Starr 17. Report on the Impact of United States v. Booker on Federal Sentencing By James A. Morgulec 18. Memorandum of January 20, 2003, from Deputy Attorney General Larry D. Thompson to U.S. Attorneys re Principles of Federal Prosecution of Business Organizations Submitted by Charles A. DeMonaco 19. Effective Cooperation by Business Organizations and the Impact of Privilege Waivers By Mary Beth Buchanan; Submitted by Charles A. DeMonaco 20. Suspension and Debarment Considerations from the Beginning to the End By John J. Pavlick, Jr ix

4 21. Recent Developments in the Criminal Enforcement of Environmental 403 Laws Affecting the Marine Industry By David G. Dickman Recent Maritime Criminal Enforcement Cases 405 Guidance re Marpol Annex 421 Environmental Compliance Program 432 Joint Factual Statement 474 Information in United States v. MSC Ship Management (Hong Kong Ltd., D. Mass. 484 United States v. MSC Ship Management(Hong Kong Ltd.,D. Mass. 507 x

5 ALI-ABA Course of Study Criminal Enforcement of Environmental Laws May 18-19, 2006 Washington, D.C. PROGRAM Thursday, May 18, :45 a.m. Registration and Continental Breakfast 8:45 a.m. Course Overview Messrs. Block and Starr 9:00 a.m. Keynote Address I: Environmental Crimes amid White Collar Policies and Practices Ms. Wooldridge 9:45 a.m. Networking Break 10:00 a.m. The Government's View of Where Things Stand Mr. Uhlmann Environmental Crimes Section's Priorities Measuring the Benefits of Cooperation Waiver of Privilege ECS/USAO Jurisdiction in Multi-District Litigation 10:45 a.m. Hardball with the Chief: A Roundtable Discussion Ms. Martin and Messrs. Buente, Hamel, Solow, and Uhlmann 12:00 noon Lunch Break 1:15 p.m. The Internal Investigation in the Age of the Thompson Memo Mss. Barrett and Smith and Messrs. Hartman, Krakoff, and Linsin Cooperate or Litigate Joint Defense Agreements Handling Cooperating Witnesses To Fire Employees or Not, and in What Circumstances 2:45 p.m. Trial Issues and Strategies: What Works, What Doesn't Judge Gold, Ms. Mitchell, and Messrs. Dighe, Jones, Kelly, and Tarun Pretrial Strategies and Discovery Jury Selection How Do Experts Fare at Trial Crawford Issues Conspiracy Issues 4:00 p.m. Networking Break 4:15 p.m. Post-Trial Issues Messrs. DeMonaco, Meunier, Morgulec, and Pavlick The Post- Booker World of Sentencing Suspension/Debarment Probationary Terms and Compliance Agreements 5:00 p.m. Questions and Answers 5:15 p.m. Adjournment for the Day xi

6 Friday, May 19, :00 a.m. Keynote Address II: Criminal Enforcement and the Regulatory Arena Mr. Nakayama 9:45 a.m. Networking Break 10:00 a.m. Emerging Issues The Maritime Cases Messrs. Dickman and Udell The Omnipresent Obstruction of Justice Charge Messrs. Sarachan and Webb Ocean Initiatives Mr. Carr and Ms. Sobeck Worker Safety and Environmental Crimes Messrs. Dooher and Gaynor 12:15 p.m. Questions and Answers 12:30 p.m. Adjournment Note: The discussionsinclude at least one full hour on ethics and professional responsibility isues, accepted as susn by most, but not all, MCLE Jurisdictions. Total 60-minute hours of instruction: 10 xii

7 ALI-ABA Course of Study Criminal Enforcement of Environmental Laws May 18-19, 2006 Washington, D.C. PLANNING CHAIRS Joseph G. Block, Esquire 575 7th Street, NW Washington, DC Judson W. Starr, Esquire 575 7th Street, NW Washington, DC FACULTY Jane F. Barrett, Esquire Blank Rome LLP The Watergate Building, Suite New Hampshire Avenue, NW Washington, DC David T. Buente, Jr., Esquire Sidley Austin LLP 1501 K Street, NW Washington, DC Donald A. Carr, Esquire Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC Charles A. DeMonaco, Esquire Dickie, McCamey & Chilcote, PC Suite 4000 Two PPG Place Pittsburgh, PA David G. Dickman, Esquire 575 7th Street, NW Washington, DC Krishna S. Dighe, Esquire Senior Trial Attorney Environmental Crimes Section Environment and Natural Resources Division U.S.Department of Justice L'Enfant Plaza Station, Room 2003 Washington, DC Daniel W. Dooher, Esquire Senior Trial Attorney Environment & Natural Resources U.S Department of Justice L'Enfant Plaza Station, Room 2114 Washington, DC Kevin A. Gaynor, Esquire Vinson & Elkins LLP The Willard Office Building 1445 Pennsylvania Avenue, NW Washington, DC xiii

8 The Honorable Alan S. Gold U.S. District Judge Tower Building, 10th Floor 301 N Miami Avenue Miami, FL W. Warren Hamel, Esquire 1800 Mercantile Bank & Trust 2 Hopkins Plaza Baltimore, MD Barry M. Hartman, Esquire Kirkpatrick & Lockhart Nicholson Graham LLP 2nd Floor 1800 Massachusetts Avenue, NW Washington, DC G. Douglas Jones, Esquire Whatley Drake, LLC P.O. Box Second Avenue, North Birmingham, AL Thomas J. Kelly, Jr., Esquire 575 7th Street, NW Washington, DC David S. Krakoff, Esquire Mayer, Brown, Rowe & Maw LLP 1909 K Street, NW Washington, DC Gregory F. Linsin, Esquire Special Litigation Counsel Environmental Crimes Section Environment and Natural Resources Division L'Enfant Plaza Station, Room 2014 Washington, DC Alice H. Martin, Esquire U.S. Attorney Northern District of Alabama 1801 Fourth Avenue, North Birmingham, AL Robert F. Meunier, Esquire Debarring Official U.S. Environmental Protection Agency 3901R Ariel Rios Building 1200 Pennsylvania Avenue, NW Washington, DC Stacey H. Mitchell, Esquire Trial Attorney Environmental Crimes Section Environment and Natural Resources Division L'Enfant Plaza Station, Room 2006 Washington, DC James A. Morgulec, Esquire Environmental and Natural Resources Division L'Enfant Plaza Station, Room 2108 Washington, DC Granta Y. Nakayama, Esquire Office of Enforcement Compliance & Assurance, EPA Ariel Rios Building, Room Pennsylvania Avenue, NW Washington, DC John J. Pavlick, Jr., Esquire 575 7th Street NW Washington, DC Richard A. Poole, Esquire Senior Trial Attorney Environmental Crimes Section Environment and Natural Resources Division L'Enfant Plaza Station Washington, DC xiv

9 Ronald A. Sarachan, Esquire Ballard Spahr Andrews & Ingersoll, LLP 51st Floor 1735 Market Street Philadelphia, PA Deborah M. Smith, Esquire Acting U.S. Attorney District of Alaska Room West 7th Avenue #9 Anchorage, AK Eileen Sobeck, Esquire Deputy Assistant Attorney General Environmental and Natural Resources Division Room Constitution Avenue, NW Washington, DC Steven P. Solow, Esquire Hunton & Williams LLP Suite K Street, NW Washington, DC Robert W. Tarun, Esquire Latham & Watkins LLP Suite South Wacker Drive Chicago, IL Richard A. Udell, Esquire Senior Trial Attorney Environmental Crimes Section Environment and Natural Resources Division U.S.Department of Justice L'Enfant Plaza Station, Room 2008 Washington, DC David M. Uhlmann, Esquire Chief, Environmental Crimes Section Environment and Natural Resources Division L'Enfant Plaza Station, Room 2102 Washington, DC Sue Ellen Wooldridge, Esquire Environment & Natural Resources Division Room Pennsylvania Avenue, NW Washington, DC xv

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11 Planning Co-Chairs Joseph G. Block, Washington, D.C. Judson W. Starr, Washington, D.C. Faculty Jane F. Barrett, Washington, D.C. Blank Rome LLP David T. Buente, Jr., Washington, D.C. Sidley Austin LLP Donald A. Carr, Washington, D.C. Pillsbury Winthrop Shaw Pittman LLP FACULTY BIOGRAPHIES Charles A. DeMonaco, Pittsburgh, Pennsylvania Dickie, McCamey & Chilcote, PC David G. Dickman, Washington, D.C. Krishna S. Dighe, Washington, D.C. Senior Trial Attorney Environmental Crimes Section, Environment and Natural Resources Division U.S.Department of Justice Daniel W. Dooher, Washington, D.C. Senior Trial Attorney, Environment & Natural Resources U.S Department of Justice Kevin A. Gaynor, Washington, D.C. Vinson & Elkins LLP The Honorable Alan S. Gold, Miami, Florida U.S. District Judge, Tower Building, 10th Floor W. Warren Hamel, Baltimore, Maryland xvii

12 Barry M. Hartman, Washington, D.C. Kirkpatrick & Lockhart Nicholson Graham LLP G. Douglas Jones, Birmingham, Alabama Whatley Drake, LLC Thomas J. Kelly, Jr., Washington, D.C. David S. Krakoff, Washington, D.C. Mayer, Brown, Rowe & Maw LLP Gregory F. Linsin, Washington, D.C. Special Litigation Counsel Environmental Crimes Section, Environment and Natural Resources Division Alice H. Martin, Birmingham, Alabama U.S. Attorney, Northern District of Alabama Robert F. Meunier, Washington, D.C. Debarring Official, U.S. Environmental Protection Agency Stacey H. Mitchell, Washington, D.C. Trial Attorney Environmental Crimes Section, Environment and Natural Resources Division James A. Morgulec, Washington, D.C. Environmental and Natural Resources Division Granta Y. Nakayama, Washington, D.C. Office of Enforcement Compliance & Assurance, EPA John J. Pavlick, Jr., Washington, D.C. Richard A. Poole, Washington, D.C. Senior Trial Attorney Environmental Crimes Section, Environment and Natural Resources Division Ronald A. Sarachan, Philadelphia, Pennsylvania xviii

13 Ronald A. Sarachan, Philadelphia, Pennsylvania Ballard Spahr Andrews & Ingersoll, LLP Deborah M. Smith, Anchorage, Alaska Acting U.S. Attorney, District of Alaska Eileen Sobeck, Washington, D.C. Deputy Assistant Attorney General, Environmental and Natural Resources Division Steven P. Solow, Washington, D.C. Hunton & Williams LLP Robert W. Tarun, Chicago, Illinois Latham & Watkins LLP Richard A. Udell, Washington, D.C. Senior Trial Attorney Environmental Crimes Section, Environment and Natural Resources Division U.S.Department of Justice David M. Uhlmann, Washington, D.C. Chief, Environmental Crimes Section, Environment and Natural Resources Division Sue Ellen Wooldridge, Washington, D.C. Environment & Natural Resources Division xix

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